Galea case could have a major impact for athletes he treated

While assorted Congressional hearings and media investigations, along with the Mitchell Report and Barry Bonds case, have recently shed light on star athletes using steroids and other illegal performance-enhancing drugs, more big names are likely to come out. Dr. Anthony Galea, a prominent Canadian physician who has worked with Tiger Woods, Alex Rodriguez, and other star athletes, is the potential source of those names.

Both U.S. and Canadian authorities have charged the 51-year-old Galea, who lacks a license to practice medicine in the U.S., with crimes under their respective countries' laws for drug smuggling. Galea faces additional charges in the U.S. for knowingly making false statements to federal agents, unlawfully distributing human growth hormone and introducing into interstate commerce Actovegin, a derivative of calf's blood that boosts metabolism and lacks approval from the Food and Drug Administration. In Canada, Galea faces other charges for selling unapproved drugs and conspiracy to export drugs. If convicted in the U.S., Galea would face up to 20 years in prison; if convicted in Canada on the most serious charge, he would face up to five years behind bars.

The cases against Galea are the product of extensive law enforcement interviews with athletes treated by Galea and with Galea's assistant, Mary Anne Catalano, who has cooperated with U.S. authorities since her arrest last September on drug smuggling charges. Some of the athletes interviewed have provided invoices, schedules of meetings and other potentially incriminating materials.

For their part, Galea's attorneys maintain their client's innocence and insist that Galea's treatment of athletes in the U.S. was related to injury healing rather than performance enhancement. As the cases in both countries develop, Galea's attorneys will likely point out that those cooperating with law enforcement authorities have an incentive to implicate Galea in order to diminish their own criminal exposure. Along those lines, it is worth noting that the initial stages of a prosecution, particularly in high-profile cases, often give an impression of guilt that is subject to change. The defendant has not yet had an opportunity to challenge accusations through cross-examination, production of exculpatory evidence and other litigation devices.

In a way, though, Galea isn't the only person on trial. Athletes who have received treatment by Galea have reason to worry that their names will be publicly revealed. Implication in the case could prove disastrous. For one, it could trigger sanction by athletes' teams and leagues in the form of suspensions or fines. Companies with which athletes have lucrative marketing and endorsement deals could also void or suspend contracts based on those contracts' morals clauses.

Most concerning, implicated athletes could themselves be criminally charged with purchasing and using illegal drugs. Granted, such athletes might be able to minimize their exposure to criminal sanction through proffer agreements, which, if offered by prosecutors, would essentially entail the athletes telling the authorities what they know about Galea in exchange for not being prosecuted. Such agreements, however, would not protect those athletes from punishments by leagues and endorsed companies.

The likely road map of a Galea prosecution highlights why some athletes should be concerned. If the cases against Galea go to trial, records of athletes working with him will be introduced as evidence and some of those athletes will be called to testify and cooperate, possibly under threat of prosecution. While the Fifth Amendment privilege in the U.S. protects those from disclosing information that they reasonably believe could be used in, or give rise to, criminal prosecutions of them, the mere calling of an athlete to testify could damage one's reputation. Other athletes may not be called to testify, but only because physical evidence sufficiently shows that Galea illegally treated them. Still other athletes may have agreed to assist law enforcement officials in exchange for their names remaining anonymous. As the prosecution advances, however, Galea's defense team would likely argue that due process and fairness command the divulgement of those players' names: Galea may be unable to defend himself if he cannot learn of, and cross-examine, those who accuse him.

Athletes could also be exposed in the event that Galea enters into a plea deal with prosecutors. Such a deal would be more likely if the evidence against him proves overwhelming and airtight. Of additional concern to athletes, a high-profile case of this kind is susceptible to leaks. While prosecutors have a duty to keep protected information confidential, leaks have a way of happening.

The U.S. criminal complaint filed against Galea underscores the importance of marquee players likely to be implicated by the Galea prosecutions. The complaint references two unnamed NFL players and one unnamed retired NFL player. Although the complaint was filed just two days ago, one of the "unnamed" active players has already been identified -- Washington Redskins wide receiver Santana Moss, according to a report in the Buffalo News. Neither of the active players admits to having taken HGH, though one admits to having used Actovegin.

Understandably, the NFL would like to learn the names of any NFL players who have been treated by Galea. Not only may those players' behavior warrant sanction, but by interviewing them the NFL could also learn how they obtained performance-enhancing substances and what steps might be taken to prevent other players from doing so.

The NFL is also motivated by recent political critique that it has failed to adequately address steroids and other performance-enhancing substances. Several influential members of Congress, including Rep. Henry Waxman, the chairman of the House Energy and Commerce Committee, have expressed such a concern.

Prosecutors, however, have no obligation to divulge information about the Galea case to the NFL, just as they would not have an obligation to share information of any witness with his or her employer.

As for Moss, he could face suspension, though keep in mind, even if NFL players admit to having taken Actovegin, those players may not have violated the league's collectively-bargained Policy on Anabolic Steroids and Related Substances. The policy does not explicitly list Actovegin as a prohibited substance. On the other hand, the policy does note that, "Players or other persons within the NFL who: are convicted of or otherwise admit to a violation of law ... relating to use, possession, acquisition, sale, or distribution of steroids, growth hormones, stimulants or related substances .. are subject to discipline by the Commissioner, including suspension or, if appropriate, termination of the individual's affiliation with an NFL Club." The "related substances" might provide the NFL with justification to punish a player who uses Actovegin.